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Tallahassee Democrat

Coronavirus Florida: Health care and business groups have GOP backing in push for lawsuit limits

John Kennedy, USA TODAY NETWORK – Capital Bureau

Published 1:32 p.m. ET May 13, 2020 | Updated 1:34 p.m. ET May 13, 2020

TALLAHASSEE – As Florida and other states phase in reopening, industry groups are stepping up their push to protect businesses, health care providers and nursing homes from coronavirus-related lawsuits.

The U.S. Senate Judiciary Committee held a hearing Tuesday on the wide-ranging legal liability that could grow out of the pandemic. And in Tallahassee, proponents are preparing legislation for when lawmakers are called back into a still-to-be scheduled special session.

“There has to be a forum to present the legislation, but we’re ready to go,” said Sen. Jeff Brandes, R-St. Petersburg, chair man of the budget committee on criminal and civil justice.

Hospital associations and the nursing home industry, an epicenter for the coronavirus spread in Florida and nationwide, have urged Gov. Ron DeSantis to expand by executive order the state’s “Good Samaritan” law. They want doctors, hospitals and health care providers shielded from being sued over any problems stemming from care given during the pandemic.

DeSantis has been non-committal. But Brandes said the Good Samaritan law – crafted to protect health care professionals from liability when performing life-saving, on-the-spot care in an emergency – generally requires that someone “voluntarily responds,” without payment.

They also want the Legislature to enact measures that would at least blunt lawsuits stemming from actions taken during the state of emergency DeSantis first signed March 9 and which he has now extended into July.

Brandes said such changes wouldn’t grant blanket immunity to companies, but it would help those that followed government guidelines during both the shutdown and phased-in reopening. Still allowed would be lawsuits involving claims of gross negligence or reckless misconduct by a health care provider, company or employer.

But the Florida Justice Association, the state’s trial lawyer organization, said lawmakers should not fall for the latest round of demands from business groups seeking expanded legal protection.

The pandemic presents fresh challenges, said FJA President Leslie Kroeger, a Palm Beach Gardens lawyer, but it should not force anyone to lose their legal rights.

“I just see a huge gap,” Kroeger said. “The state and most businesses are talking about reopening safely. Then you have another group which is talking about how we’re intent on not going to get sued.

“To me, that suggests that if you’re already talking about not getting sued, maybe you’re not focusing on safety enough,” she added.

She called the move, “a grab.”

“It’s big business and their lobbyists just trying to promote tort reform and taking advantage of an horrific pandemic,” she said.

Nursing homes officials, Kroeger added, regularly push state lawmakers to reduce staffing requirements and inspections, and now are struggling to manage a virus that has proven devastating to their residents.

But Kristen Knapp, spokeswoman for the Florida Health Care Association, the state’s nursing home industry, said that even a proposal that companies meet government guidelines to gain legal protections could fall short of a guarantee.

Recommendations for the kind of face masks that should be worn have varied among agencies, she pointed out.

“In the midst of this unprecedented crisis, long-term caregivers should be able to direct their skills and attention to helping individuals who need them, and not have to worry about being sued for making these types of tough decisions while trying to comply with government directives,” Knapp said.

Florida House Speaker Jose Oliva, R-Miami, has expressed concerns about legal liabilities facing businesses and would probably support some review of the issue by the Legislature, said spokesman Fred Piccolo.

Republicans and business groups lobbying for liability protection argue that such action is needed to protect companies restarting operations after extended shutdowns, along with those which were allowed to remain open to customers with a scaled-back workforce, who also may have risked exposure to the virus.

The COVID-19 Complaint Tracker, a national database maintained by the U.S. law firm Hunton Andrews Kurth, showed almost 1,000 coronavirus-related lawsuits since Jan. 30. Nearly 30% of the lawsuits involved litigation arising from prison conditions. Florida had 82 lawsuits included in the tracker.

Critics say such numbers don’t suggest that there’s a deluge of lawsuits. And they add, existing law still will make it difficult for a plaintiff to win a claim that coronavirus was transmitted by a visit to a store or restaurant.

But supporters of new limits say the lawsuits are likely only beginning to emerge.

“There’s a lot of confusion and businesses need protection from lawsuits and workers compensation claims,” said William Large, president of the Florida Justice Reform Institute, which argues for reducing business exposure to lawsuits.

“There needs to be clarification, and the concerns go beyond health care providers,” he added.

Scott Shalley, president and CEO of the Florida Retail Federation, said help is needed.

“Florida’s retail stores are making sincere efforts to keep their teams and their customers safe, based on all the information available,” Shalley said.

But he added, “We are concerned there are trial lawyers anxious to take advantage of this crisis with frivolous lawsuits aimed at small businesses, and it is important to protect this industry from further, unjustified harm.”

In Washington, U.S. Senate Majority Leader Mitch McConnell is demanding that protecting businesses from lawsuits linked to COVID-19 be a condition to approving another stimulus package to help states and local governments deal with budgets battered by revenue losses caused by the widespread shutdowns.

The Judiciary Committee began its work on legal liability, hearing testimony from the CEO of the Kwik Chek convenience store chain, a representative of the union for meat packing workers, and a South Carolina tourism official.

While McConnell may be able to get some changes through the Senate, the Democratic-led U.S. House is a different matter, with trial lawyers and labor groups resisting efforts to offer any kind of broad lawsuit protections to companies.

In a Republican-controlled state like Florida, business and health care groups probably have a better chance. But even in Tallahassee, liability changes have proven a tough sell.

Against the backdrop of so many issues that have risen to prominence amid the pandemic – massive budget shortfalls, a dysfunctional unemployment compensation system, an uncertain school calendar and a tourist industry mostly shuttered – Republicans would be challenged if they put up lawsuit limits as a priority in a special session.

Rep. Anna Eskamani, D-Orlando, who has been working with hundreds of Floridians struggling to file claims for unemployment benefits in Florida’s problem-plagued online CONNECT system, said that GOP leaders are prioritizing the needs of large corporations while ignoring many other needs.

They’ve condemned the risk of lawsuits filed by patients, customers and workers, even as some congressional Republicans have promoted lawsuits against China over the coronavirus.

“It’s a clear reflection of where the governor’s and where the Republican Party’s priorities are,” Eskamani said. “They’re not coming to help working Floridians.”

Rich Templin, with AFL-CIO-Florida, also said any effort to restrict lawsuit rights should be watched closely.

“I don’t think anybody would argue that it may be worthwhile to examine our current liability laws in this new reality,” Templin said. “But that’s not usually what happens in Tallahassee.

“Instead, there are powerful interests that push to allow companies to operate with impunity just because they don’t want to be held responsible for their actions,” he added.